“Perhaps you'd better sit down. I'm afraid I have some bad news.”
“What is it, doctor?”
“The results of your tests have come back and I'm sad to say they confirm our suspicions.”
“You mean –”
“Yes, you have a non-injury. That toxic substance you think you might have been exposed to at some point apparently had no impact on you whatsoever.”
“There's nothing wrong with me at all?”
“I'm sorry to have to tell you this, but you're in good health.”
“So, there's no hope? I won't be able to sue for damages?”
“I'm afraid not. Of course –”
“There is this thing called medical monitoring. It would allow us to keep testing indefinitely, in hopes of eventually finding something wrong with you that can be blamed on the manufacturer of that substance that seems not to have harmed you, and it's all paid for by the company that didn't cause the injury that you didn't receive.”
This absurd scenario is actually a reality in West Virginia, where persons with no evidence of injury can force companies that haven't harmed them to finance ongoing efforts to find a cause of action.
As of now, businesses can still be required to fund the fishing expeditions of plaintiffs attorneys by paying for the medical monitoring of uninjured persons.
Companies subjected to this burden are presumed guilty, held liable for an injury yet to be identified. Denied the Fifth Amendment protection against self-incrimination, they’re compelled to finance a process designed to produce evidence against them.
West Virginia is one of a handful of states that permit this travesty of justice, but it may not be in that ignominious group much longer. Last week, the Judiciary Committee of our state senate approved Senate Bill 236, which, if passed and signed into law, would require persons filing medical monitoring claims to provide evidence of injury.
No injury, no claim. Who but a self-serving trial attorney could argue with that?